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A large part of the Indian nation will remember Kanna as their passport to justice in an unjust world.

He was a synonym, almost, for the Human Rights activist who placed intellectual integrity and human values at the centre of the discourse. His was a giant intellect used for service of those who suffered from distortions of State power, its misuse and double speak.

Kanna was also a Human Rights activist who wore the burden lightly. His extraordinary irony and wit, helped many of us recover our sense of purpose when assailed by a sense of hopelessness.

We in the RTI movement, MKSS, and as members of the PUCL will cherish his contribution to building the core discourse on Human rights. For being able always to access him and his wise advice.

In quick succession PUCL has lost two stalwarts. KGK was such an inspiration to all. Leading a very simple life, carrying so much learning in such light manner, his fragile self was full of staunch resolve to fight for civil liberties and human rights. When there was a threat to his life and we at PUCL wanted to send a representation to the then AP Chief Justice, he wanted no special protection and told us not to worry and that he was willing to face what ever is in store. Unperturbed by any rough weather he led the life he preached. Let us rededicate our selves to the causes KGK stood for.

Anticipatory bail can’t be restricted to small duration: Supreme Court

J. Venkatesan

No such limitation envisaged by legislature under Section 438 Cr.PC

Nearly 60% of arrests either unnecessary or unjustified

Strike a balance while considering anticipatory bail prayers

New Delhi: Observing that great ignominy attaches to the arrest of a person, the Supreme Court has held that it will not be proper for the trial court or the High Court to grant anticipatory bail for a limited duration and thereafter ask the accused to surrender and seek regular bail.

“Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage and the post-conviction stage. Life bereft of liberty would be without honour and dignity, and it would lose all significance and meaning, and life itself would not be worth living,” said a Bench of Justices Dalveer Bhandari and K.S. Radhakrishnan, allowing an appeal against an order declining anticipatory bail to a man.

Writing the judgment, Justice Bhandari said: “Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an individual’s life at risk must call for the most anxious scrutiny.” He quoted a Constitution Bench judgment in Sibbia’s case, according to which there should not be any limitation on grant of anticipatory bail.

“However [subsequently], some Benches of smaller strength have erroneously observed that Section 438 Cr.PC should be invoked only in exceptional or rare cases, that means the life of Section 438 Cr.PC would come to an end after that limited duration. This is not the correct view as no such limitation has been envisaged by the legislature,” Justice Bhandari said.

Arbitrary use of power

The Bench pointed out that the Law Commission, in its report, had severely criticised the police for arbitrary use of the power of arrest which, the Commission said, “is the result of the vast discretionary powers conferred upon them. The Commission expressed concern that there is no internal mechanism within the Police department to prevent misuse of law in this manner.”

The Bench said that by and large, nearly 60 per cent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 per cent of the jail expenditure. Arrest should be the last option and restricted to exceptional cases where it was imperative in the facts and circumstances of a case.

“While considering the prayer for anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to a free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; the court has to consider reasonable apprehension and must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

Personal liberty precious

The Bench said: “Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the cases. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental to their proper existence and no other right can be enjoyed without the presence of the right to life and liberty.”

In the instant case, Siddharam Satlingappa Mhetre was denied anticipatory bail by the Bombay High Court. The Supreme Court allowed his appeal and directed that he be granted anticipatory bail on certain conditions.

St. Aloysius College, a 130-year old premier educational institution of Mangalore, is run by the Jesuit priests who belong to the Christian minority group. The college has been regularly conducting a ‘Musical Evening’ program for its students for the past over 10 years. This event, organized within its own campus limits, has not faced any sort of problems so far. However this year’s musical festival held on 23rd December 2010, was suddenly disrupted. By a posse of policemen from the Bunder station. They entered the college campus without any warrant and started abusing the staff as well as the students in the filthiest language possible. As reported by a daily newspaper the police party was led by sub-inspector Mr. Manjunath who demanded that “the educational institution must seek police permission to conduct their programs”

According to one of the professors who was present there and was witness to the entire incident, “the policemen simply rushed into the campus and came directly to the place where the musical event was being held. They snatched the students’ cameras and ordered that the musical program be stopped.” “The arrival of police force in the campus triggered a lot of panic among the boys and girl students” he added.

Fr. Swebert DSilva, the principal of the college demanded to know “how could the police enter the campus without any provocation or law and order problem and then abuse my staff and students?”

The policemen did not leave the campus until they were confronted by the campus minister who threatened that he would report the matter to the higher authorities. The police then vacated the premises and the “Musical Evening” program was resumed soon thereafter.

The entire incident was followed by several discussions in social networking forums in the evening that quoted the students of the college complaining that the police misused their authority. Some journalism students also complained that the police had seized their cameras.

Observations of the PUCL fact-finding team

The Bunder police team was neither able to justify its presence nor produce a warrant when demanded by the college authorities. Therefore this is a clear case of trespassing by the police on the private property of a minority-run educational institution. There are strong grounds to believe that it was an act of mischief done with an intent to cause harassment.

The sub-inspector of Bunder police station exceeded his brief and acted arbitrarily without consulting his superiors.

It is also very obvious that this particular sub-inspector who callously quoted to the media that “the institution must seek police permission to conduct their program” is not aware of the limits of his jurisdiction.

We feel that the Bunder police wanted to aggravate the situation. Using foul words they tried to provoke and incite the staff and students to violence.

The Bunder police team led by sub-inspector Manjunath used its position, power and authority to instill fear among the students and staff.

We believe that the Bunder police team was trying to seek the attention of the higher officials and also gain some personal publicity.

The people of Mangalore are just beginning to appreciate the functioning of the new commissionerate system. However, such isolated activities as the one by the Bunder police station, lowers the credibility of other police stations in Dakshina Kannada as well.

Further it also raises doubts if the new commissionerate system would be able to effectively handle its own internal practices and discipline the police force.

PUCL has not received any communication so far whether an internal enquiry has been ordered by the Dakshina Kannada police in this matter.

I hope you don’t mind the temerity of this letter. It is written as one scholar to another, one citizen to another. I know you are a PM and people like me may not be influential. However some things must be said and said clearly.

I was aghast to find that Doctor Binayak Sen has been given a life term for sedition. Let me put it simply. I think it is an appalling act of injustice and a betrayal of an ethical vision.

The point I wish to make is simple. We do not have to agree with Binayak Sen, anymore than we have to agree with Mahaswta Devi or Arundhati Roy or Baba Amte. But these have been voices of conscience. These are people who have care and healed, given a voice to the voiceless. They represent the essential goodness of our society. They are Indians and outstanding Indians and no nation state can negate that. I admit that such people are not easy people. They irritate, they agonize over things we take for granted or ignore. They take the ethical to the very core of our lives. Let us be clear. It is not Sen’s ideology that threatens us. It is his ethics, his sense of goodness. We have arrested him because we have arrested that very sense of justice in ourselves.

Sen is a man with courage, a professional doctor with the conviction that healing has to go beyond medicine, that the body cannot heal when the body politics is ill. He is a reminder that health, politics and ethics go together. Another man who said it but a bit differently was Mohan Das Gandhi.

Sen is a reminder of the deeper travails of our society. We hate the poor for their poverty. Worse, we hate those who fight for the poor. Somehow it has become fashion to condemn human rights, to treat activists as fifth columnist, to regard them as fronts for terrorists groups.

A human rights activist has the courage to point out the humus of terror is injustice. Oddly and predictably people who fight injustice are condemned as terrorists. A human rights activist often has to defend a man he disagrees with, keeping both the activist and the disagreement alive.

The sadness of our state is that its categories have become numb and lifeless. Categories like the nation state, the idea of security, our sense of territoriality lack a recognition of generosity, the courage, the challenge to categories that dissenters make. Yet the risk the dissenter takes is preferable to the silence that exonerates violence torture, injustice or genocide. Mr.Binayak Sen should be in your cabinet Mr.Singh, or a member of your development councils, not in jail. A life giving career cannot be met with a life sentence. Think of your own angst and silent suffering after 1984. You are an honest man, a sensitive man and a gentle man. Think of the slow indifference to justice then.

The word Naxal or Maoist sins less than it is sinned against. It is a term that black-boxes a variety of reactions to violence and injustice. Some of them seek to meet violence with violence, some seek to engage with the roots of violence. Others sympathise quietly with victims of injustice. When was empathy a crime? It is a strange world where to call a man a naxal sympathizer condemns him as much as the Naxal activist. The word Naxals is also applied to tribals who fight for justice or the activists who fight along with the tribals. To condemn all is to condemn a large part of India. If fighting for justice or caring for an old man is sedition, then the seditious need a param vir chakra, as warriors against injustice, not a life sentence. To punish Sen is not just bad law, it is an act of cowardice. It is odd that it is Sen who believes in the law at the very moment the law condemns him. Both radicalism and the rule of law are human creations and both demand critical scrutiny. It is time for a conversation. A society where those who fight for decency are attacked cannot be a decent society. You are a decent man and a thinker. All I ask is that you think about the case of Binayak Sen. Invite him for tea listen to him. It will tarnish you or the rule of law. It might show you the yawning gap between law and justice.

Think of it, Mr.Prime Minister that ours is a society that spends more on defending the Raja, Radia and Kalmadi than Binayak Sen. The law works for the first three who corrupt the core of our system but fails for Binayak Sen who upholds some of its finest values. Tell me Mr.Singh how long can a society remain sane without confronting such ironies?

Let me frame it in a different way. Today’s sedition might be tomorrow’s axiomatics. We often define as sedition what we can’t understand or can’t stand. It challenges our sense of security, the security of categories. It might be easier to understand Sen’s work within a framework, a spectrum of thought.

Begin with the Arjun Sengupta report on the informal Economy. It shows how we have sinned against the life world of hawkers, traders, scavengers, trades which constitute 70% of our economy. Then think of Jairam Ramesh claiming forests are not as renewable as we think and that tribes and forests have a connectivity that we must understand. That shakes up the naïve theory of growth. Then think of Mahasweta showing how tribes have been converted to bonded labour, how mining has corroded our country. Then place Binayak Sen in that spectrum as a doctor and a human rights activist. It is the Chattisgarh bureaucracy that sounds tyrannical and unreasonable. One realizes sedition has become a stick to beat down dissent or to even erase concern for the downtrodden.

To impose a life sentence on Sen is to freeze our own lives of possibility. It is time not just to release Binayak Sen but to honour him and the ideals he worked for. Our democracy for all its bumbling can still rise to the occasion

Shiv Viswanathan

Please Add Your Signatures December 27, 2010

Release Binayak Sen, NOW

Citizens from different walks of life from Mumbai and Maharashtra have unequivocally condemned the life imprisonment sentence meted out to Dr Binayak Sen, a human rights activist and defender of deep commitment to the poor and marginalized by a trial court in the central Indian state of Chhatisgarh on December 24. They have demanded that he be granted bail immediately and the appeal to this scandalous pronouncement be heard by the higher courts, forthwith.

The judgement is appalling upholding as it does charges of sedition against a man who struggled for the rights of India ’s adivasis and one who moreover, opted for a life among the voiceless. Not only was the case framed by a vindictive state of Chhatisgarh, a false and motivated one u/s 120(b) 124(a) of the IPC and u/s 1,2,3,5 of the Chhatisgarh Special Public Security Act and section 39(2) of the UAPA (2004 amended), the conviction sets a dangerous trend for India’s judiciary.

Such signals from our courts are directly aimed at human rights defenders who tirelessly expose state terror, rights violations by counter terrorism forces like salva judum, and the central and state paramilitary, while espousing the path of non violence. Apart from a unjust and unfair persecution of Dr Binayak Sen and his family, such a verdict that ignores the fundamental rights and civil liberties of the people while privileging the brute force of the state machinery actively ensure that the critical spaces for dissent that allow struggle for justice, critical in a living, breathing democracy shrink, pushing persons to extremes.

The verdict sends a warning signal to all those who struggle for the civil liberties and human rights of the disaffected and coming as it does from a court plunges human rights preservation and protection in the country to an all time low. It is time for all who stand for equality and freedom to raise our voices against the brute injustice meted out to Dr Binayak Sen and his family. Make the demand, Release Binayak Sen, NOW!!

The People’s Union for Civil Liberties is deeply disappointed at the miscarriage of justice reflected in the judgement of Raipur Additional District and Sessions Judge B. P. Verma sentencing our National Vice President Dr. Binayak Sen to life imprisonment under charges of sedition 124 (A) of the IPC read with conspiracy (120-B IPC) along with convicting him concurrently u/s 8-(1), (2), (3) and (5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam,2005 (Chhattisgarh Special Public Safety Act, 2005) and
u/sec 39 (2) of the Unlawful Activities Prevention Act, 2004 (amended). It is a sad day for the PUCL and all human rights defenders in the country and a black day for the Indian Judiciary

Dr. Binayak Sen was charged with being a courier of letters from co-accused Narayan Sanyal to Piyush Guha. All through the trial not a single Jail authority appearing as prosecution witness confirmed this. In fact, there was no substantive evidence to confirm any of the allegations of the prosecution.
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The PUCL holds that Dr Binayak Sen is a victim of the vendetta of the Chhattisgarh government for his bold and principled opposition to state sponsored vigilante operation Salwa Judum, which has been held unacceptable even by the Supreme Court. His conviction is one more example of the state succeeding in securing the conviction of an innocent person on the basis of false evidence. It is an occasion for the nation to demand drastic reform of the criminal justice system to ensure that it is not manipulated by the state to persecute, prosecute and victimize innocent persons.

The PUCL will continue to work towards Dr. Binayak Sen release and take all legal measures in this regard. It will also work towards building public opinion against the ongoing persecution of activists and Human Rights Defenders in the country.